NARRATOR: Thanks for joining this episode of the No. 86 lecture series, in which Professor Richard Epstein discusses the Roman law of persons. In this episode, Professor Epstein explains the role of slavery in the Roman society, and how the responsibilities of slaves and servants evolved into modern business arrangements. This lecture is part of a series with Professor Epstein on how this ancient legal system can provide crucial insights about modern problems. Professor Epstein is one of the most prominent legal scholars of our day. He is the inaugural Laurence A. Tisch Professor of Law at NYU School of Law, a Senior Fellow at the Hoover Institution, and Professor of Law Emeritus and a senior lecturer at the University of Chicago. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Let’s start with a very basic question - how was slavery justified in the Roman world when it is universally recognized as against natural law? RICHARD EPSTEIN: There is an obvious tension between the natural law on the one hand, and the positive law on the other hand. According to Justinian, and virtually everybody else at the time, slavery was against the laws of nature, which was essentially thought to guarantee the freedom of every individual, but nonetheless, it was part of the positive law. If you're sitting there writing jurisprudence over these particular subjects, you do not have the luxury to say to the emperor, who's your employer, "What we're gonna do is to say that this institution is void and of no effect." So that the entire system of slave ownership everywhere throughout the Roman Empire, goes kaput." This has always been a terrible problem under these situations, and it's one that's basically caused an enormous amount of anxiety for, no less a figure than, Abraham Lincoln. Slaves are property, we're gonna do the emancipation. Where are we gonna do it? In the North? No, we're gonna do it in the South where they're in rebellion because at that point we don't have to really go after our own people. Okay, that's fine. Then the question, we're taking property, do we owe them compensation? Because of the other natural law principle, that the state ought never to condemn property for public use, unless it's prepared to pay just compensation for the owner. There were many people who said slavery was illicit from the foundation, we're not taking property, we're undoing an illegal arrangement. Others said, what a second, this was perfectly legal under the world as it existed prior to this time and we have to start the compensate them for this particular loss. You can see how these two principles are going to clash. The Romans essentially ducked all of those particular issues given their absolutist view, but the natural law tradition continues to haunt everybody moving forward. Therefore, the importance of Justinian is in modern debates, when some people want to say about somebody, like John Calhoun and so forth, well it was just in accordance with the mores at the time, everybody understood what was going on. Able historians, like Eric Foner, who's written much about this ... he was actually a friend of mine at Columbia College, so I have a special place of affection ... he said, "Whelp, you can't say that nobody knew what the truth was about this situation because you can go back to Roman times and you can see the uneasiness about slavery, and so the illegitimate nature of the institution was basically acknowledged by the very people who spelled it out." Now how do you want to treat this when you're doing scholarship? The great book on slavery, still well worth reading, is by a man named W. W. Buckland, a former engineer, writing in 1908. He talks about slavery in 400 or 500 well-crafted pages and on the moral dimension this is what he has to say, "With the moral dimension about slavery, this book has nothing to say." That is what he understood perfectly well, is if you're trying to expose a system and figure out how it works, why it's put together and so forth, and all you want to do is to spend your time condemning its legitimacy, you'll never do the job of exposition. What you really need to do is to have this kinda very powerful partition between these two things. One guy is responsible for the exculpation and the other one is responsible for the denunciation. We know how that thing came out. If you actually go through the history in England and so forth, the abolition of slavery was not done easily. It was done first in 1770s in the British colonies, then about 30 years later it was done in the home. I think most people sorta understand that the abolition of slavery in the United States was one of the issues that triggered the bloodiest conflict that this country had ever entered into, including World War II. We lost 600,000 men, roughly speaking, in the Civil War and 400,000, roughly speaking, in World War II. It was about trade, but essentially the issue that drove everybody, was the issue about slavery. The reason why it's so difficult, is if you come within the legalistic tradition there's a strong system of vested rights, if you come within the natural law system, none of this really counts for anything at all. It's just very difficult through the art of fine persuasion to work a compromise. Lincoln, of all people, understood this better than anybody else. If you read some of his statements and so forth, having to do with Dred Scott and so forth, he made concession after concession onto the Southerners on these kinds of issues because he understood the enormity of trying to upset one of these kinds of arrangements. When you do modern American constitutional law, it's really important to understand the level of doubt, anxiety, and trammel that took place between the period of Dred Scott, which was decided about 1856 or so, and the adoption of the 13th, 14th, and 15th Amendments, which take place between December of 1865 and, I think it's, somewhere in 1870. So, there're five years over this period, just an enormous amount of trans ... you know, dispute that starts to take place, and their reasons for it. Two very different traditions have to come to peace. We know which one won in the end, but if you're trying to do history it's much better to understand the turmoil as it unfolded to the parties who were involved, rather than, looking at the result that came out of it and treating it as though it's inevitable; and therefore, understanding not a whit about how it was that the debate was framed in the earlier period. Good historians are extremely careful about all of that stuff, and when you start to do so you can see just how perplexing an issue slavery turns out to be. This is not to say that it's part of the new program of a political party to re-institute the institution, nobody believes that of course, it's just a way to say that transitions are always messy, even if the moral position at the end of the day is crystal clear. PUBLIUS: Many slaves in Roman households were given extensive responsibility. What sort of authority or power would the Romans bestow on their slaves? RICHARD EPSTEIN: The interesting feature under Roman law was that there was a second class of slaves, and these were people who were teachers, these were people who were merchants of one form or another, they were surely owned but they were authorized, at least within limits, to enter into business transactions with third parties. So, you now had to figure out a standard legal problem, what is the relationship between the third party, who may or may not have been represented by a slave in the transaction, the slave and the slave owners? It's in this area that we start to see a number of problems. Let me just mention two of them. One of them has to do with the so-called peculium, and essentially what happened is a peculium was the origins of the limited liability corporation which we start to see many, many years later. What happened was the owner says, "I want you to be able to trade. I know that you have to have enough property in order to make these things credible. I don't know want it to be that you have specific authorizations from me for every particular transaction, here's the stuff, go to it, and enter into third parties." So essentially what happens is you get an agency relationship and a limited liability corporation meshed into one thing, and that kind of relationship still exists today, when you have closed corporations. The shareholders are insulated from the liability, but they have to put a pool of assets into the hands of the corporate managers, who can then deal with those assets to third parties. If it turns out they're not enough, you could go back and get guarantees today, and sure enough you could do that with the peculium, which is why whether you mention these things that the Roman law of guarantees and particular obligations is such an important part of the overall system, it's certainly tied up closely with the limited authorities that slaves have. The origin, essentially, of the modern corporation comes out of this particular kind of institution. Now, the second arrangement that you have is slaves, like other kinds of property, can be subject to multiple ownership. So just as you can have two people owning in common a house or a book or a business as partners, they can own a slave. When the slave enters into various transactions, the question then is which of these particular owners is going to be bound by this transaction? Which of these particular people is gonna be able to take the benefit of that transaction? What typically happens is you have a two-stage approach to the problem. The first is that the two owners, being limited partners for this particular venture, can enter into an agreement in which they specify the way in which the risk and the burdens of particular slave operations can be divided between them, and those agreements will generally be enforced as a matter of course. Typically, or at least in many cases, you see no such arrangement, so what you have to do is to figure out essentially which of these particular parties are gonna be responsible in a given case. So, it's there in Gaius,, you get another one of these famous school dispute. So, the question is, you have a slave who enters into a transaction, everybody agrees that if the slave enters into the transaction in the name of one of its two owners, that's the party who's going to be bound, but there is a dispute, if it turns out there's a quiet authorization by one to do the transaction but not by the other. Is it the one party who gets the benefit or burdens of it, or in the absence of formality are you gonna split this thing fifty-fifty? The formalists tend to be very unhappy about these kinds of arrangements, those were the Sabinians I believe, and then the other side would take it in the opposite direction. The law of persons, essentially, is extremely complicated. You then start to move forward. We're not gonna talk about the guardianship questions and so forth because those are relatively constant, but the question of is a corporation a person? Is it a shareholders? Is it an entity or is it not, becomes one of central questions of modern political life. . . PUBLIUS: It’s interesting that these Roman business arrangements correspond to our modern corporations. Could you elaborate on that a bit more? And why would we be concerned about the “personhood” of a corporation? RICHARD EPSTEIN: To give you but one application of this question, if you start to look at the Constitution it says, "the Federal government shall with the Federal courts under Article Three, shall have the power to adjudicate cases between citizens of different states." That means if I'm from the Nebra ... well, from the beginning time, if I'm from New York and you're from New Jersey, the federal courts can take control of a contract dispute between us even though there's no federal statute or federal constitutional provision that turns to be involved. Now suppose that we have a New Jersey corporation and a New York corporation, can you go into Federal Court? Well, corporations are not citizens, they can't vote, they can't participate, and people say, "Well, you know it's really inconvenient not to allow them." So, you do exactly the same thing that the Romans did with respect to the pecuniary obligations on the guarantees. You ask yourself, is there is any reason why if diversity is designed to protect you against the homegrown preferences of one jurisdiction against another, it should not apply to corporate transactions? If it applies to individual transactions, you're very hard to find that. So the first initial move is, well if all the persons in a given corporation are in one state and all the other persons in the other corporation are from different states you do have complete diversity, but you know the more people you have in these businesses the more likely there is to be an overlap so in a series of stages essentially what we say is that a corporation's "a citizen" of the state in which it's incorporated or in the state in which it has its principal point of business. This is pure fiction, and yet there's nobody who'd want to get rid of it. If you're a textual originalist, you're gonna wince. If you're somebody who asked the questions, as to whether or not when you see a slip up in the drafting, how you'd like to correct it by a sensible emendation, you'd say that this case is close enough by way of analogy that you'll do it. Although, you'll never say if I'm a citizen of state A, as a person, and you're a citizen state A, as a person, that somehow or other we could have diversity jurisdiction. The first is analogical extension, and the second, just is a complete distortion and return of thing. This is essentially the central line in statutory implication is to whether or not when you look at the structure, history, text, and purpose, does the extension which is not literal, conform with the structural and purpose of ends of this thing or whether or not it turns out to be a direct assault upon it. If you understand that arrangement, then all this Roman law stuff about corporations and slaves turns out to be here. Now, the last point to make about this, didn't mention it before, is the Romans do have something which they call the universitatum, which is a sort of an aggregate, which is supposed to be a corporation, but they don't have the corporate term. So, if you look at the Latin, this universal phrase means sort of everybody is all in, and then you get again the wrong translation, where they treat this as a corporate body. Which of course, is not what it is, but you can see what they're clearly driving at. There are certain forms of property, like public buildings and so forth, which you have to find some way in which to organize and to own and you don't have a clear conception of public ownership, so you kinda create this hybrid term in order to cover the case. We see it mentioned in both Gaius and in Justinian. We don't see its implications fully spelled out, but we know enough about that situation so that when we get to the law of property, you can see how it is that this particular thing fits into the larger system. PUBLIUS: In what other ways have Roman laws involving persons shaped our modern legal rights? RICHARD EPSTEIN: Yeah, well essentially what happened is the Roman law shaped them in the following way, it made it appear perfectly natural and ordinary that the individual human being was not the unit of legal personality. So when you start to come to Anglo-American law, it may be that the pater familias disappears but the relationship between husband and wife changes. So there's a legal maxim in the earlier days which says that the husband and wife are one as a matter of law, but they're two in a matter of fact. Well then you have to decide where the distribution of power lies in that particular arrangement, so what you do is you end into a period of essentially husbandly dominance over the kind of the arrangement and the women are subordinate. Well, that's what happens in marriage, then what you have to do is to worry about what happens to women before marriage and women who choose to remain single. It was a very painful situation to essentially decide that they had full rights to contract in one form or another, to own property, to make wills and so forth, and this was only clarified in the period after the Civil War. The rough American evolution in crude terms is that all of the stuff having to do with the private law material was sorted out between about 1865, the end of the Civil War and about 1900 with the many forms of the Married Woman Property Act. As often happens, it's social forces that are driving this, so you see a single development starting to take place in England and in the United Kingdom, but there's also the political side on this. Essentially what happens is political rights and civil rights were thought to be exactly the opposite under this tradition. Civil rights dealing with private law, political rights dealing with participation, voting participation, and so forth. But you look at the American constitution, it's pretty progressive on that. It turns out there's nothing whatsoever in the original constitution that starts to give preference for men over from women. There's not sex qualification for serving the president or in the congress and so forth. The only time that you start seeing sex introduced into the constitution is in connection with the modification, not the repeal of the three-fifths rule, which took place in Section 2 of the 14th amendment, widely forgotten today which essentially says when you do the various calculations having to do with voting, you only look to male inhabitants. It's an explicit sex distinction in Article 2 which is then declared unconstitutional by reading equal protection and Article 1 to overcome it, that takes place in the 1970s. It's also a case in which, when it came to the position of the slaves, the states were given an option, if they don't include former slaves in the denominator, they can't be included for calculations adjust out, so if you want to have the greater number of people, you have to let them vote, but you have the option to exclude them from voting and just take a small position in the electoral college and in the congress. You could see essentially, this is not modernity speaking, but this is part of the kind of awkwardness that always happens in political transactions. If you didn't see this section, section 2, you'd never imagine that something like this could happen, but there it sits and it only requires careful reading and explication to go on. What we then do is we of course have huge battles on voting with respect to both race and the one hand and with respect to sex on the other hand. On the race side, essentially there was systematic exclusion that took place one way or another. There were what they called grandfather clauses, and what these said is, "You're allowed to vote in this election if your grandfather was allowed to vote in this election, but since your grandfather was a slave, you can't vote." This essentially remained good until about 1915, when essentially the supreme court came down and said, "This is just a covert restrictions on voting, you can't use this stuff. Every person has an equal right to vote, notwithstanding this." Then you have another 50 years in which there's essentially dogged resistance to extending the franchise to black individuals on a thousand different grounds. The voting rates are amazingly low, coercion, all sorts of official qualification, polls tax and so forth. This essentially only gets unglued in the mid 1960s. The Voting Rights Act of 1965, which followed on the heels of the Civil Rights Act of 1964, is the legendary and vitally important probation dealing with this stuff but this issue still continues to be of very, very great importance inside the American framework today on all of the pre-clearance of other enforcement methods. Key case called Shelby County shows just how divisive this issue can be in modern times and it all stems from the fact that when you try to undo a terribly unjust system, it's much more difficult to know when you're successful or to figure out what remedial measures turn out to be needed. So that's on the race side, very quickly. On the sex side, it's a somewhat easier survey. For one thing is that the system of de facto exclusion which existed with respect to race, never existed with respect to sex. On the other hand women, unlike slaves or former slaves, were married to rich and powerful men. They often had great intellectual and personal distinction of their own and so there was a suffragette movement which took place here and England which essentially agitated, sometimes with violence, often not, saying, "Why are we excluded from the polls? It makes absolutely no sense that we should be governed by the political polity if we can't participate in the way in which it's organized. It's profoundly anti-democratic." The resistance of this continued until the end of World War One and then in rapid succession, first in England in 1919, or 1918, and then with the amendments in the United States constitution in 1920, women were given the full right to vote. That kind of ended the thing with respect to voting in the sense that participation rates immediately became high and there was no sort of back door efforts to keep women from voting under these circumstances, which created the same kind of situation that you had with the Civil Rights Act and more importantly, whereas you can racially gerrymander a district so as to give blacks or whites more or less influence, an issue which is still of great importance to this very day, you can't gerrymander differences on the grounds of sex. To say, "Well, we're going to put Manhattan this way because there are more women than men and we're going to do Albany the other way because there are more men than women." That just doesn't exist. So on the voting front, it turns out that the sex issues kind of gets more or less conclusive a resolution whereas on the race issue, it kind of goes forward. But both of these things, in the political dimensions, are a direct legacy of the fact that even after Civil Rights entered the contract, makes wills and so forth, were more or less taken care of, the political dimension took at least another 50 or 60 years and in the case of racial discrimination at the election, the battle is still very hot and heavy today. It's no longer the momentous issue that it was in 1965, as John Roberts pointed out, black participation in southern elections is no often higher than white participation in the same elections. So whether you like the rules or not, you can never say that this is an issues of crisis performance, this is just an issue in which honest people could have very, very severe differences. NARRATOR: Thank you for listening to this episode in the Roman Law unit of the No. 86 lecture series. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for more lectures and videos on Property, Contracts, and the Common Law. Thanks for listening. See you in class!